Welcome to Texas justice: You might beat the rap, but you won't beat the ride.

Wednesday, May 30, 2012

Did prosecutor misconduct shift balance of power to Dems in US Senate?

Last week, counsel for former US Senator from Alaska Ted Stevens put out a statement damning the Department of Justice for issuing light punishments to prosecutors who failed to turn over exculpatory evidence and engaged in other misconduct, noting that the case "resulted in the loss of Senator Stevens’ re-election bid" and, as a result, the "balance of power shifted in the United States Senate." See the May 24 statement from Williams Connolly LLP, below the jump, via White Collar Crime Prof Blog.

Today the Department of Justice demonstrated conclusively that it is not capable of disciplining its prosecutors. Apparently, prosecutors can violate the Constitution, deny the defendant exculpatory evidence demonstrating innocence, and introduce perjured testimony without any fear that they will be punished. Prosecutors orchestrated a miscarriage of justice in Senator Stevens’ case that caused the Attorney General of the United States to order the case dismissed. Trial Judge Emmet Sullivan declared that the misconduct was the worst he had encountered in 25 years on the bench. The misconduct caused a jury to render an illegal verdict, which in turn resulted in the loss of Senator Stevens’ re-election bid. And, the balance of power shifted in the United States Senate. The punishment imposed is laughable. It is pathetic. No reasonable person could conclude that a mere suspension of 40 and 15 days for two of the prosecutors is sufficient punishment for the wrongdoing found in the report.

It took a massive scandal and a independent investigation for two federal prosecutors to face even these sanctions - essentially unpaid vacations and a black mark in their files - while three of the six prosecutors involved faced no punishment at all. (A sixth committed suicide during the investigation.) Grits doubts any of these prosecutors have been or will be sanctioned by the bar, though even DOJ agrees they withheld exculpatory evidence. These suspensions will likely be the full extent of accountability for what happened. See the full report [large pdf] on prosecutorial misconduct in the Stevens case, which concluded that “This misconduct was intentional.”)

Grits frequently insists that criminal justice issues mostly don't fall along partisan lines and this episode provides a great example: After prosecutorial misconduct literally helped shift the balance of partisan power to Democrats in the US Senate (and nobody even gets fired over it!), conservatives surely have just as much of a stake in reducing it as progressive reformers.

I've posted the following on the TDCAA forum, which I don't expect to be allowed to be up for long. Here's the link and here's the text of the posting.

http://tdcaa.infopop.net/eve/forums/a/tpc/f/157098965/m/6867056606

Now that the Republican primary elections in Williamson, can we have a meaningful discussion of the Morton case? It's been like the white elephant around this site since the story really broke last year.

I'm suggesting that the TDCAA strongly consider having Mr. Morton and his lead attorney John Raley as our keynote speakers this September at our seminar. Realizing another speaker has likely been booked, there could be no more important message or lesson we as a profession could learn than that which could be imparted by Mr. Morton and Mr. Raley.

I'm not starting this thread to dog the allegations against Ken Anderson or John Bradley. Many prosecutors disagreed with Bradley's stance in fighting dna testing in the Morton case for so long, and with such a bitter antagonism to the Morton team.

But let's face the real facts here. The Morton case, and the actions of Anderson and Bradley, and the allegations against them collectively and individually, have probably done more damage to the institution of prosecution in Texas than all other acts or allegations of prosecutorial misconduct combined.

We know the legislature will be addressing the Morton case in more than one aspect this next session. Although the TDCAA provides "guidance" to legislators, I suspect most of the TDCAA's opinions comes from the electeds and not the larger number of those of us in the trenches who actually send the really bad folks away for a really long time. We the ada's should have some input into this process, via this thread hopefully.

I for one, although I had nothing to do with the Morton case whatsoever, would like to shake the man's hand and apologize for the 6 year delay in testing the evidence that proved him innocent. Likewise, Mr. Raley, the son of a prosecutor, is owed an apology as well. I think our entire profession owes them an apology. I'll note that I do not think the parties involved in Mr. Morton's wrongful conviction have apologized in any meaningful way at all as of present, and it's damn time that this apology issue from our ranks.

I've posted this under an anonymous ID to prevent anticipated and feared retaliation. I realize that some electeds don't want to agree to dna testing or to open files, but a new day is dawning for prosecutors and if those of us who actually do the work want some say in how we conduct our business, the TDCAA needs our opinion to truly represent us. I hope this is not deleted by the TDCAA. It's not an attempt to stir controversy or beat Anderson and Bradley up, but let's face it, it's time to discuss the issues that arose in Morton and what we can do to prevent that tragedy from happening again. As important, a dialog about dna testing and other post conviction issues is needed because we need to face the fact that likely other folks have been wrongfully convicted.

When a man like Mr. Morton loses somewhere around a third of his life because of a dubiously prosecuted circumstantial murder case, and the true killer remains on the loose for decades, it's time for some changes in our profession.

We are an honorable profession. So many of the prosecutors I know statewide are honorable people who shudder at the thought of jailing an innocent defendant. I think we need to stand as a profession and say that the Morton case was not right, that it was not handled right, and that we are open to working with the legislature to draft laws to prevent it from happening again.

"I always tell people interested in these issues that your blog is the most important news source, and have had high-ranking corrections officials tell me they read it regularly."

- Scott Medlock, Texas Civil Rights Project

"a helluva blog"

- Solomon Moore, NY Times criminal justice correspondent

"Congrats on building one of the most read and important blogs on a specific policy area that I've ever seen"

- Donald Lee, Texas Conference of Urban Counties

GFB "is a fact-packed, trustworthy reporter of the weirdness that makes up corrections and criminal law in the Lone Star State" and has "shown more naked emperors than Hans Christian Andersen ever did."

-Attorney Bob Mabry, Conroe

"Grits really shows the potential of a single-state focused criminal law blog"

- Corey Yung, Sex Crimes Blog

"I regard Grits for Breakfast as one of the most welcome and helpful vehicles we elected officials have for understanding the problems and their solutions."

Tommy Adkisson,Bexar County Commissioner

"dude really has a pragmatic approach to crime fighting, almost like he’s some kind of statistics superhero"

- Rob Patterson, The Austin Post"Scott Henson's 'Grits for Breakfast' is one of the most insightful blogs on criminal justice issues in Texas."

- Texas Public Policy Foundation

"Nobody does it better or works harder getting it right"

David Jennings, aka "Big Jolly"

"I appreciate the fact that you obviously try to see both sides of an issue, regardless of which side you end up supporting."

Kim Vickers,Texas Commission on Law Enforcement Officer Standards and EducationGrits for Breakfast "has probably broken more criminal justice stories than any TX reporter, but stays under the radar. Fascinating guy."

Maurice Chammah,The Marshall Project"unrestrained and uneducated"

John Bradley,Former Williamson County District Attorney, now former Attorney General of Palau

"our favorite blog"

- Texas District and County Attorneys Association Twitter feed"Scott Henson ... writes his terrific blog Grits for Breakfast from an outhouse in Texas."